This court has jurisdiction and authority to provide injunctive relief under the following statutes and laws: 28 U.S.C. § 1331, 42 U.S.C. § 1983.

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ARTICLE III STANDING

Plaintiff was a registered voter in a national election held on November 8, 2016, whereby Donald J. Trump and Mike Pence were selected as President and Vice President of the United States. Several other candidates were selected to serve in the U.S. House of Representatives and the U.S. Senate. Plaintiff is challenging the constitutionality and lawfulness of current federal officials’ planned exercise of power (Flast v. Cohen) in accordance with the Twelfth Amendment beginning on January 3, 2017, and culminating soon after Friday, January 20, 2017. During that period of time, representatives of the political branches of government will exercise their powers to officially install into federal offices persons unwittingly made party to a fraudulent election by a third party seeking to undermine the “people’s” republican form of government.

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RELIEF SOUGHT

There exists compelling evidence that operatives acting on behalf of a third party (named as the Government of Russia) illegally and repeatedly invaded U.S. election systems, extracted hundreds of thousands of voter records, and engaged in other criminal acts of cyber terrorism, yet to be discerned, during the 2016 election cycle to materially influence congressional and presidential election outcomes.

While it cannot be ascertained—due to the nature of clandestine cyber-attacks1—the degree to which cyber invasions were or were not determinative of election results, there exists clear and convincing evidence that some elected officials who prevailed in the 2016 elections were “selected” by a foreign power rather than “elected” in accordance with states’ electoral voting processes, since untampered popular vote totals could not be discerned.

Plaintiffs request the Court permanently enjoin the President of the Senate, Members of the U.S. Senate, Members of the U.S. House, and other persons in the U.S. Government from:

1) Swearing in on January 3, 2017, persons newly elected to the U.S. House of Representatives and the U.S. Senate;

2) RatifyingonJanuary6,2017,electoral votes cast by state electors and transmitted to the President of the U.S. Senate;

4) Procurement and issuance of performance bonds to persons elected to federal office on November 8, 2016; or

5) All other acts commensurate to the peaceful transition of power following a valid election.

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ISSUES PRESENTED

Is the Non-political Remedy of Permanent Injunctive Relief Available to the Court Under Article IV § Section 4 (The Guarantee Clause)?

The hacking of the 2016 elections provides a new context for examining the intent of our Founding Fathers as it relates to the Guarantee Clause. Article IV § 4 provides:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against invasions and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

Plaintiff comes before the Court seeking a judicial remedy in the form of a permanent injunction under Article IV § 4 (The Guarantee Clause) to prohibit persons elected to federal office in 2016 from taking office based upon hacked election results.

The Court has long held that questions arising under Article IV § 4 “are political, not judicial, in character, and thus are for consideration by Congress or the Executive Branch and not the courts.2 In New York v. United States, Justice O’Connor, writing for the Court, questioned the conventional wisdom that cases under the Guarantee Clause are summarily nonjudiciable:

The view that the Guarantee Clause implicates only nonjudiciable political questions has its origin in Luther v. Borden . . . . This view has not always been accepted. In a group of cases decided before the holding of Luther was elevated into a general rule of nonjusticiability, the Court addressed the merits of claims founded on the Guarantee Clause without any suggestion that the claims were nonjusticiable . . . . More recently, the Court has suggested that perhaps not all claims under the Guarantee Clause present nonjusticiable political questions . . . . Contemporary commentators have likewise suggested that courts should address the merits of such claims, at least in some circumstances. (New York v. United States, 112 S. Ct. 2433 (1992).)

The remedy plaintiff seeks is judicial in nature and would not be within the authority of the executive or legislative branch to grant.

Did the United States Fail to Fulfill the Mandates of the Guarantee Clause by Failing to Protect the States from Cyber Invasion During the 2016 Elections?

The 2016 primary and general elections fail to comply with constitutional standards, since the federal government failed to protect states and election systems in the states used to capture and calculate votes from invasion by third parties who evidenced an intent to skew election results in favor

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of candidates of their choosing. The United States has changed in incalculable ways since our Founders ratified the U.S. Constitution. The population of the U.S. has increased exponentially, and the nation has greatly enlarged its land mass. The U.S. has developed technologically in ways that simply could not have been foreseen when the Constitution was drafted. The constitutional guarantee to protect states from invasions would today necessarily include invasions of any of a state’s territories, including cyber and other territories.

Is the Court Obligated to Uphold the Rule of Law Without Regard to Political Consequences?

Section IV § 4 guarantees that the federal government will assure and provide States the following protections: 1) a republican form of government; 2) protection against invasion; and 3) protection of legislatures and executives from domestic violence.3

The Court may exercise its power of judicial review to examine cases involving the political branches of government (Executive Branch and Legislative Branch) and enjoin unconstitutional acts.

The U.S. Government failed to protect State cyber territories from invasion. The failures enabled invaders to taint, extract, and manipulate election data in a manner and to the extent only the invaders know.

Should the Court Concern Itself with Creating an Extraordinary Political Conundrum?

It is well-settled that the court does not entertain questions that are political in nature (Baker v. Carr, 369 U.S. 186 (1962)). The federal court’s power of judicial review is to examine the facts of the case and render judgment within the jurisdiction of the court’s judicial powers. Plaintiff requests the court review a constitutional matter and provide a remedy in the form of permanent injunctive relief even though it will give rise to an extraordinary political conundrum that will require the political branch of the U.S. Government to hold a new election, which is the same remedy the Supreme Court in Austria4 and the Ukraine5 ordered following foreign intervention into their elections.6

A ruling granting permanent injunctive relief will have the unintended consequence of compelling the President and the Executive Branch—many of whom were beneficiaries of the cyber hacks—to join together, devise procedures for holding new elections, enact revote legislation and implement measures to ensure state and federal elections are tamper-free. Without such remedies, the door to undermining America’s democracy will remain wide open.

Does Allowing Members of the U.S. Congress to Ratify 2016 Federal Election Results Enlist Members De Facto in an Illegal Scheme Orchestrated by an Invader?

The Twelfth Amendment to the U.S. Constitution provides a list of requirements Secretaries of State, the President of the U.S. Senate (Vice President of the United States), Members of the Congress, and Members of the Executive Branch must complete to accomplish a peaceful transition of power.

Political leaders charged with transition-of- power responsibilities have also taken an oath of office promising to uphold the U.S. Constitution and comply with this nation’s laws and now must make a difficult choice due to third-party cyber invaders. Political leaders must either comply with Amendment Twelve of the U.S. Constitution and ratify electoral votes significantly determined by hackers or comply with their oath of office to uphold the Constitution and thereby refuse to help perfect the criminal acts of cyber terrorists. Never has the Court’s counterbalancing influence been more needed.

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FACTS PRESENTED

Voting Is the Hallmark of American Democracy.

Although the right to vote for electors may not be enshrined in the U.S. Constitution—(“[t]he individual citizen has no federal constitutional right to vote for electors for the President of the United States.”] (Bush v. Gore))—citizens in the Republic of America view the right to vote as an inherent right.

Voting is the bedrock of the U.S. electoral process outlined in the Constitution’s Twelfth Amendment. Without the citizens’ votes, Secretaries of State could not determine which party’s electors to seat for the Electoral College and, consequently, which electors are entitled to vote for the President of the United States.

There is a reason citizens wrongly believe the right to vote is enshrined in the U.S. Constitution. Citizens regard voting as the mechanism by which they participate in our republic. Never has the importance of the people’s right to vote been more evident than now. During the 2016 election, third- party hackers committed criminal and terroristic acts, invaded our cyber territory, and interfered in U.S. elections in a manner we have yet to fully discern. (See Appendix A—Limited Number of Election Hack Scenarios.)

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The people’s vote is their voice, and that voice was muted by hackers who undermined the U.S. electoral process in 2016.

The Federal Government and States Have Long Known State Voting Systems Are Subject to Invasion by Third-party Actors.

America is a sovereign nation that has a government, territories, and population. With the advent of computing, new territorial boundaries emerged in the form of cyber territory: Encroachment upon a nation’s sovereign boundaries is a criminal act:

SECTION 1: SOVEREIGNTY, JURISDICTION, AND CONTROL

Rule—1: Sovereignty

A State may exercise control over cyber infrastructure and activities within its sovereign territory.

1. This rule emphasizes the fact that although no state may claim sovereignty over cyberspace per se, states may exercise sovereign prerogatives over any cyber infrastructure located on their territory, as well as activities associated with that cyber infrastructure.

2. The accepted definition of “sovereignty” was set forth in the Island of Palmas Arbitral Award of 1928. It provides that “Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to

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exercise therein, to the exclusion of any other State, the functions of a State.”

3. It is the sovereignty that a state enjoys over territory that gives it the right to control cyber infrastructure and cyber activities within its territory. Accordingly, cyber infrastructure situated in the land territory, internal waters, territorial sea (including its bed and subsoil), archipelagic waters, or national airspace is subject to the sovereignty of the territorial state.7

The American system of voting utilizes various methods to capture and count votes, including paper ballots, optical scan paper ballot systems, direct recording electronic (DRE) systems, ballot marking devices and systems, punch card voting systems, mechanical lever voting machines, and online balloting by military and overseas Americans. Some electronic voting systems create a paper audit trail and some do not.

Computer experts, advocacy organizations, think tanks, and security experts have perpetually warned states and the federal government that state election laws, policies, processes, and machines that

together create America’s voting system during a federal election are plagued by numerous vulnerabilities and irregularities that allow for voter suppression, manipulation, and invasion by third- party actors who have sinister intent.

The Guarantee Clause of the U.S. Constitution requires the United States to protect all its territories from invasion. While Founding Fathers could not have envisioned today’s technological society, protection against invasion applied to all of the nation’s borders and today includes cyber territories:

Protection against invasion was a continuation of an established centralized foreign policy and defense under the Articles of Confederation and Perpetual Union. The Framers understood that protection of the borders was essential to both the security of the people and the viability of the economy.8

On multiple occasions throughout the 2016 election cycle, the U.S. Department of Homeland Security and the U.S. Intelligence Community, which is composed of 16 agencies, warned that third-party

actors, alleged to be Russian, were interfering in U.S. elections and invading election systems.9

Intelligence reports reveal that the President of the United States and members of Congress were briefed about the cyber invasions throughout the 2016 election cycle, and Secretaries of State were also made aware of third parties’ continuous efforts to breach U.S. election systems. The alarms were numerous and included a stream of reports and news articles:

 The Chicago Tribune publicized that the Illinois State Board of Elections reported that hackers—believed to be of foreign origin—had obtained personal information from over 200,000 voter records beginning in June 2016.10

 An intelligence report titled FBI/DHS Summary Report: GRIZZLY STEPPE – Russian Malicious Cyber Activity, published on December 29, 2016, by the Federal Bureau of Investigation tells of widespread election hacking. The report provides technical details regarding the tools and infrastructure used by the Russian civilian and military intelligence

9 Joint Statement from the Department of Homeland Security and Office of the Director of National Intelligence on Election Security: (October 7, 2016): https://www.dhs.gov/news/2016/10/07/joint-statement- department-homeland-security-and-office-director-national.

Services (RIS) to compromise and exploit networks and endpoints associated with the U.S. election, as well as a range of U.S. government, political, and private sector entities. This activity by RIS is part of an ongoing campaign of cyber-enabled operations directed at the U.S. government and its citizens.11

 A CBS News website article titled More State Election Databases Hacked Than Previously Thought, dated September 28, 2016, reveals that government officials were growing increasingly concerned about Russian efforts to disrupt or influence the 2016 election. The report also claimed that a total of about 10 states had their systems probed or breached by hackers, similar to the election systems breaches that had already occurred in Arizona and Illinois.12

Political leaders who were aware of the cyber- terrorist activity failed to stop the invasions into state election systems or develop stopgap measures that would have allowed for easy detection of voter fraud activity by hackers or other parties. As a

While the rule of law may preclude the Court from contemplating the political ramifications of its actions during judicial review, permanently enjoining persons elected to federal office in 2016 will have the positive and unintended consequence of requiring the political branches of government (Executive Branch and Legislative Branch) to fulfill their constitutional obligation to devise election standards and approaches that protect states’ cyber territories against encroachment, as required in Article IV § 4. Should a cyber terrorist manage to defeat state election systems’ safeguards in the future, properly instituted procedural safeguards can enable the speedy detection of illegitimate votes, manipulation of vote totals, unauthorized removal of voters from registration files, and other sinister acts of which only the hackers are aware (Appendix A).

The hacking of the U.S. elections in 2016 was unprecedented in scope and contaminated the election process to such an extent that it is impossible to determine the reliability of election outcomes for the highest offices in our nation.

A third party invaded State election systems across the nation, extracted voter registration records, tampered with data, disseminated data, and as a result, no one can determine conclusively—due to the extraordinary and massive nature of the cyber invasions—if or the extent to which foreign hackers determined election outcomes.

The highly charged nature of America’s political environment has pitted party interests against national interests and has rendered some political guardians unable to act and others unwilling to act to remediate the effects of the unprecedented attack on our sovereign nation’s most important process—the election of top leaders who determine national policy, oversee military and intelligence assets, manage our economy, oversee our government, and chart our future.

The President of the United States has responded to the election cyber attacks by expelling Russian diplomats. But the acts of retaliation do little to mitigate the injury to state, electors, and voters. The risks of allowing such an openly tainted election to stand poses incalculable and extraordinary risk to the preservation of our Union and the perception of the United States on the world stage.

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Petitioner requests that the Court issue an Extraordinary Writ of Mandamus permanently enjoining political leaders from proceeding with transition of power duties contained in Amendment Twelve of the United States Constitution and other duties stated in this petition.

Dated this 2nd day of January, 2017

Jane Doe

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CERTIFICATE OF SERVICE

I hereby certify that on January 2, 2017,
I sent a copy of the Petitioner’s Opening Brief by mail to:

The Solicitor General of the United States U.S. Department of Justice, Room 5616 950 Pennsylvania Ave, NW
Washington, DC 20530-0001

Signature: Jane Doe Date: January 2, 2017

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CERTIFICATE OF COMPLIANCE

I certify that the total number of pages I am submitting as my Petitioner’s Opening Brief is 30 pages or less or alternatively, if the total number of pages exceeds 30, I certify that I have counted the number of words and the total is 3688, which is less than 13,000. I understand that if my Petitioner’s Opening Brief exceeds 13,000 words, my brief may be stricken and the appeal dismissed.

Signature: Jane Doe Date: January 2, 2017

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APPENDIX A
Limited Number of Election Hack Scenarios by Brian Fox-CAVO

SCENARIO I — Hack Early, Reap Later
In this scenario, a machine has its software changed

during the primary elections. The goal of the change is to install software that will run during the general election, and will change the way the votes are counted during that election. This type of attack often generates a sense of safety and security among the election officials, because when they hand count and otherwise audit the results of the primary election, the results match perfectly. Election officials then believe that the machines are working and have not been tampered with. When the votes are tallied for the general election, the hack is activated, and the counts are skewed.

This type of attack can be carried out by an individual, who shows up to vote at a precinct.

SCENARIO II— Hack and Reap

In this scenario, the election equipment is used as normal, but at tally time, the memory card associated with the tally is modified (this can be done in seconds, but not likely by a voter). Once again, the counts are skewed, and the election results are different than they would have been. However, after this has happened, ballots are either destroyed or discarded, so that there is no record or auditable verification of the false count.

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Because of the way our Electoral College works, in both of these scenarios, the place to attack is within states that are expected to vote about 50/50 between the two major parties. In those states, find a couple of larger precincts to hack, where you expect the vote to be overwhelmingly for the candidate that you do not want to win. Steal 10% of the votes cast there for your candidate, and you’ve not changed the precinct results, but you have changed enough votes to change the state’s results.

About the Author—Brian J. Fox

Brian J Fox is an American computer programmer, entrepreneur, consultant, author, and free software advocate. He was the original author of the GNU Bash shell, which he announced as a beta in June 1989. He continued as the primary maintainer for Bash until at least early 1993.

In 1985, Fox and Richard Stallman began Stallman’s newly created Free Software Foundation. At the FSF, Fox authored GNU Bash, GNU Makeinfo, GNU Info, GNU Finger, and the readline and history libraries. He was also the maintainer of Emacs for a time, and made many contributions to the software that was created for the GNU Project between 1986 and 1994. He is founder of CAVO and pioneered the initial OS vote tabulation systems.